Citation NR: 9712390
Decision Date: 04/08/97 Archive Date: 04/18/97
DOCKET NO. 95-22 510 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to an effective date earlier than March 17, 1992
for the grant of service-connection for status post left
cerebral vascular accident (CVA) with memory deficits and
right hemiparesis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active duty from June 1950 to June 1954
and from June 1956 to July 1972 with a period of reserve
service between the periods of active duty.
The issue on appeal stems from a Department of Veterans
Affairs (VA) Regional Office (RO) rating decision dated in
December 1992 granting service-connection for status post
left cerebral vascular accident (CVA) with memory deficits
and right hemiparesis secondary to service-connected
hypertension effective from March 17, 1992.
The Board of Veterans’ Appeals (Board) notes that during the
development of the present appeal, an RO rating decision
dated in October 1994 reduced the 100 percent schedular
evaluation, in effect from March 17, 1992, for status post
left cerebral vascular accident (CVA) with memory deficits
and right hemiparesis to 50 percent under 38 C.F.R. and Part
4, Diagnostic Code 8009-9305 effective from January 1, 1995,
in accordance with the procedures under 38 C.F.R. § 3.
105(e). The veteran filed a timely notice of disagreement to
the reduction. Following receipt of additional evidence in
support of the veteran’s claim an RO rating decision dated
January 1995 awarded separate ratings for distinguishable
residuals of service-connected CVA as follows: (1) residuals
of CVA with partial aphonia evaluated as 60 percent disabling
under 38 C.F.R. and Part 4, Diagnostic Codes 8009-6519
effective January 1, 1995; (2) residuals of CVA with episodes
of confusion and memory deficit evaluated as 50 percent
disabling under 38 C.F.R. and Part 4, Diagnostic Code 8009-
9305 effective from January 1, 1995 and (3) residuals of CVA
with right leg weakness evaluated as noncompensable under
38 C.F.R. and Part 4, Diagnostic Code 8520 effective from
January 1, 1995.
The RO indicated that no further appellate development would
be undertaken with respect to the restoration of an increased
100 percent rating for CVA since the rating action in January
1995 also granted service-connection for a separate
disability
characterized as sezary syndrome due to Agent Orange (AO)
exposure with a 100 percent schedular evaluation assigned
from June 30, 1994. Such action was considered a full grant
of benefits except for the earlier effective date question
presently before the Board.
At this time the Board notes that since the veteran was
awarded less than the maximum schedular ratings with respect
to his CVA claim, he should be issued a supplemental
statement of the case and opportunity to submit a substantive
appeal on the following issues; restoration of a 100 percent
rating for status post left cerebral vascular accident (CVA)
with memory deficits and right hemiparesis, an increased
rating for residuals of CVA with partial aphonia, an
increased rating for residuals of CVA with episodes of
confusion and memory deficit and an increased rating for
residuals of CVA with right leg weakness. See, AB v. Brown,
6 Vet.App. 35 (1993). These issues are not inextricably
intertwined with the certified issue on appeal.
Also, the Board notes that since the veteran’s statement in
February 1993, may also be construed as a notice of
disagreement with the denial of an increased rating for
service-connected hypertension in December 1992, the RO
should furnish the veteran a supplemental statement of the
case on such matter and an opportunity to submit a
substantive appeal as such issue is likewise not inextricably
intertwined with the certified issues on appeal.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by and on behalf of the veteran that he
failed to file a claim for entitlement to service connection
for the CVA which occurred in August 1990 at an earlier time
because of the residual memory loss caused by the event,
thereby warranting entitlement to an effective date, prior to
May 17, 1992, for a grant of entitlement to service
connection for status post left CVA with memory deficits and
right hemiparesis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against an effective date, prior to March 17,
1992, for the grant of service-connection for status post
left CVA with memory deficits and right hemiparesis.
FINDINGS OF FACT
1. All relevant evidence which could reasonably be obtained
by the RO has been obtained.
2. The veteran's claim for entitlement service connection
for residuals of a CVA which occurred and was treated at a
private facility in August 1990 was considered received by
the RO on March 17, 1992.
3. An RO rating decision in December 1992 granted service-
connection for status post left CVA with memory deficits and
right hemiparesis secondary to service-connected hypertension
effective from March 17, 1992.
CONCLUSION OF LAW
The criteria for an effective date, prior to March 17, 1992,
for the grant of service connection for status post left CVA
with memory deficits and right hemiparesis, have not been
met. 38 U.S.C.A. §§ 5107, 5110 (West 1991 & Supp. 1996);
38 C.F.R. §§ 3.310(a), 3.400 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran served on active duty from June 1950 to June 1954
and from June 1956 to July 1972 with a period of reserve
service between the periods of active duty.
Following final separation from active duty in July 1972, the
veteran first filed an application for entitlement service
connection compensation benefits for various disorders
including essential hypertension on April 17, 1978.
Based upon the evidence of record an original RO rating
decision dated in August 1978 granted-service-connection for
essential hypertension, hearing loss and tinnitus, effective
April 17, 1978, date of receipt of claim.
On March 27, 1992, the RO received the veteran’s official
claim for entitlement to service connection for a stroke that
occurred in August 1990 and claimed secondary to service-
connected hypertension. However, the RO shows the official
date of claim as March 17, 1992.
Subsequently received in support of the veteran’s claim were
private medical records and statements showing treatment in
August and September 1990 for acute left hemispheric CVA.
The etiology of the CVA was considered most likely
hypertension.
An RO rating decision dated in December 1992 granted service-
connection for status post left CVA with memory deficits and
right hemiparesis, effective March 17, 1992.
At a hearing before a hearing officer at the RO in January
1996 the veteran noted that he failed to file an earlier
claim because of the memory deficit caused by the CVA. His
wife noted that had she known better that she would have had
the veteran treated for CVA at a military of VA facility
instead of through private medical sources.
Analysis
The veteran's claim is "well grounded" within the meaning of
the statute and judicial construction. 38 U.S.C.A. § 5107(a)
(West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
VA, therefore, has the duty to assist the veteran in the
development of facts pertinent to his claim. In this regard,
the current evidence of record consisting of the veteran's
service medical records, along with extensive post service VA
and private clinical evidence and a transcript of testimony
given by the veteran and his wife at a recent hearing before
a hearing officer at the RO in January 1996 have been
included in the veteran's claims folders and provide a
complete basis upon which to address the merits of the
veteran's claim. There is no indication that there are
additional outstanding records which VA has not attempted to
obtain. Accordingly, no further assistance to the veteran is
required to comply with the duty to assist him as mandated by
38 U.S.C.A. § 5107(a) (West 1991).
The veteran maintains that the evidence of record
demonstrates findings warranting the grant of an earlier
effective date for the grant of service connection for
residuals of CVA prior to March 17, 1992.
The applicable law and regulations concerning effective dates
state that, except as otherwise provided, the effective date
of an evaluation and award of compensation based on an
original claim will be the date of receipt of claim or the
date entitlement arose whichever is the later. 38 U.S.C.A.
§ 5110(a); 38 C.F.R. §3.400. For direct service connection,
the effective date is the date following separation from
service or date entitlement arose if the claim is received
within one year after separation from service; otherwise,
date of receipt of the claim or date entitlement arose,
whichever is later. 38 C.F.R. § 3.400(b)(2)(i). 38 C.F.R.
§ 3.310(a) (1996) provides that disability which is
proximately due to or the result of a service-connected
disease or injury will be service-connected.
Moreover, the Board notes that the provisions of 38 C.F.R.
§ 3.155(a) (1996) for informal claims provide that any
communication or action, indicating an intent to apply for
one or more benefits under the laws administered by VA from a
claimant, his or her duly authorized representative, a Member
of Congress, or some person acting as next of friend of a
claimant who is not sui juris may be considered an informal
claim. Such informal claim must identify the benefit sought.
Upon receipt of an informal claim, if a formal claim has not
been filed, an application form will be forwarded to the
claimant for execution. If received within one year from
date it was sent to the claimant, it will be considered filed
as of the date of receipt of the informal claim.
The provisions of 38 C.F.R. § 3.157 (1996) regarding report
of examination or hospitalization as claim for increase or to
reopen claim provide that an effective date of pension or
compensation benefits, if otherwise in order, will be the
date of receipt of a claim or the date when entitlement
arose, whichever is the later. A report of examination or
hospitalization which meets the requirements of this section
will be accepted as an informal claim for benefits under an
existing law or benefits under a liberalizing law or VA
issue, if the report relates to a disability which may
establish entitlement. Acceptance of a report of examination
or treatment as a claim for increase or to reopen is subject
to the requirements of § 3.114 with respect to action on VA
initiative or at the request of the claimant and the payment
of retroactive benefits from the date of the report or for a
period of one year prior to date of receipt of the report.
38 C.F.R. § 3.157(a) (1996).
The provisions of 38 C.F.R. § 3.157(b)(2) (1996) regarding
evidence from a private physician or layman provides that the
date of receipt of such evidence will be accepted when the
evidence furnished by or on behalf of the claimant is within
the competence of the physician or lay person and shows
reasonable probability of entitlement to benefits. The
provisions of 38 C.F.R. § 3.157(b)(3) (1996) regarding State
and other institutions provide that, when submitted by or on
behalf of the veteran and entitlement is shown, date of
receipt by VA of examination reports, clinical records, and
transcripts of records will be accepted as the date of
receipt of a claim if received from State, county, municipal,
recognized private institutions, or other Government
hospitals.
A comprehensive analysis of the record clearly demonstrates
that the veteran’s claim for entitlement to service
connection for residuals of CVA secondary to service-
connected hypertension was first received by the RO at the
earliest on March 17, 1992. The pertinent evidence
subsequently received in support of his claim consisted of
private medical documents reflecting the onset and treatment
of an acute CVA in August 1990 and considered etiologically
related to his service-connected hypertension.
As it stands, the applicable law and regulations are quite
clear and straightforward. Since the veteran's claim for
service connection for status post left CVA with memory
deficits and right hemiparesis was not received until March
17, 1992, service connection cannot be established prior to
this date. The Board may not speculate as to when the
veteran may have filed his claim but for his memory loss.
Rather, the Board is bound by the pertinent regulations and
facts of the case. Overall, the preponderance of the
evidence is negative and against entitlement to an effective
date, prior to March 17, 1992, for the grant of service
connection for status post left CVA with memory deficits and
right hemiparesis.
ORDER
Entitlement to an effective date, prior to March 17, 1992,
for the grant of service connection for status post left CVA
with memory deficits and right hemiparesis is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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